In Depth

Shortly after a federal judge ordered Indiana to recognize the marriage of one same-sex couple, the Office of the Indiana
Attorney General continued its defense of “traditional marriage” by filing a notice of appeal with the 7th Circuit
Court of Appeals. By doing so, it added to the list of appellate courts hearing challenges to state marriage laws.

Attorney General Greg Zoeller is appealing a preliminary injunction issued by Chief Judge Richard Young of the U.S. District
Court, Southern District of Indiana that prohibits the state from enforcing its ban on same-sex marriage against Munster couple
Nikole Quasney and Amy Sandler.

In addition, Zoeller has filed a motion to stay with the District Court to halt enforcement of the preliminary injunction
until the 7th Circuit renders an opinion on the matter.

Castillo

The attorney general’s office expressed “sincere sympathy” for the plaintiffs but maintained the state’s
marriage law does not allow for hardship exceptions.

“When plaintiffs’ lawyers sue the state and challenge its laws, the state is entitled to a defense in court,”
said Bryan Corbin, spokesman for the attorney general’s office. “The Indiana Legislature, not the attorney general’s
office, determines the marriage law in Indiana. As the state’s lawyer, the attorney general’s office has a legal
duty to defend the laws of the state from lawsuits in the trial court and in any appeal, and the appellate courts ultimately
will decide the case.”

Quasney and Sandler are among the plaintiffs in Baskin, et al. v. Bogan, et al., 1:14-CV-00355, the lawsuit filed
by Lambda Legal which asserts Indiana’s ban on allowing same-sex couples in the state to marry and its ban on recognizing
same-sex marriages legally performed in other states are unconstitutional.

Lambda Legal filed an emergency request on their behalf because Quasney is terminally ill with Stage IV ovarian cancer. Young
initially issued a temporary restraining order then followed with the preliminary injunction, which will ensure that Sandler
will be listed as the surviving spouse on Quasney’s death certificate if she dies in Indiana.

Young’s decision to issue the preliminary injunction did not surprise many. Just as he noted when he issued the temporary
restraining order, Young said the plaintiffs have shown a “reasonable likelihood of success” based on the merits
of their case.

Paul Castillo, the attorney for Lambda Legal who argued on behalf of Quasney and Sandler, called Young’s ruling a victory
but pointed out the judge has not ruled on the “ultimate question” of whether Indiana’s marriage statute
violates the equal protection and due process clauses of the U.S. Constitution.

States’ rights

Indiana does not appear to be slowing in its defense of the state’s marriage statute. Along with its appeal and the
motion to stay the Quasney and Sandler decision, the state appeared before Young on May 2 to argue for summary judgment in
Baskin, et al. v. Bogan, et al.

Sanders

Indiana University Maurer School of Law Professor Steve Sanders said the Indiana attorney general’s office is taking
this aggressive posture because it is “more concerned, at this point, with scoring points with social conservatives
than about the dignity of a dying person.”

The AG’s office said the preliminary injunction would have been appealed by whichever party lost the decision. The
state appealed to the 7th Circuit to keep its legal options open and to allow the process to continue in court so the legal
questions can be resolved conclusively.

Along with its continued push in the Baskin case, Zoeller has filed a motion for summary judgment in the same-sex
marriage challenge brought by the ACLU of Indiana, Fujii, et al. v. Pence, et al., 1:14-CV-00404.

Indiana argued, in part, that the Supreme Court of the United States decision in United States v. Windsor –
which triggered the avalanche of same-sex marriage lawsuits across the country – actually preserved the states’
ability to define marriage as they see fit. The decision in Windsor held that Section 3 of the federal Defense of
Marriage Act violated the Fifth Amendment because it deviated from the tradition of recognizing and accepting state definitions
of marriage.

“First there is no doubt that the Constitution gives its blessing to New York to recognize out-of-jurisdiction same-sex
marriages,” Zoeller wrote in the brief supporting the motion for summary judgment. “… It is a considerable
leap from this conclusion, however, to read Windsor, which struck down Section 3 of DOMA for discrimination against
‘basic personal relations the State has found it proper to acknowledge and protect,’ to establish a singular
vision of a fundamental right to marriage that must be respected by all States.”

The ACLU of Indiana dismissed that argument, maintaining SCOTUS prefaced the Windsor decision with a reference from
Loving v. Virginia which held state laws regulating marriage cannot violate the Constitution.

“But the mere fact that the Court resolved the issue before it without unnecessarily invalidating numerous state statutes
not before it does not mean that its rationale has no role to play in subsequent challenges to those statutes,” the
ACLU asserted in its response.

Likewise, Castillo does not believe the states’ rights argument is convincing. He pointed out that Zoeller has maintained
this line of reasoning in his amicus briefs and other amicus briefs filed across the country have made similar arguments,
but they have all been rejected by every single court that has ruled on marriage laws.

Circuit courts

With Indiana’s filing, the 7th Circuit joins the 4th, 5th, 6th, 9th and 10th circuits in having appeals of same-sex
marriage cases on its docket. The 4th and 10th circuits have heard oral arguments and recently, the 9th Circuit Court issued
a stay preventing Idaho from performing gay marriages.

Sanders said a ruling from the 7th Circuit that upholds Young’s preliminary injunction is not certain, but the odds
are in Lambda Legal’s favor. Namely because Young is a respected District judge, his decision can have a little more
sway with the Circuit panel. Also, Young’s finding for Quasney and Sandler is not unique since federal judges in Ohio
and Illinois have issued similar rulings regarding same-sex couples facing grave illnesses.

The 7th Circuit might have a hard time going counter to the wave created by District courts overturning marriage bans across
the country, Sanders said.

Meanwhile, Young will continue to handle Baskin, et al. v. Bogan, et al. and the other four lawsuits challenging
Indiana’s marriage statute. Castillo expects the judge will rule quickly on the state’s motion for a stay and
that decision, too, will most likely be appealed to the 7th Circuit.•

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